State v. Poteet

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHRISTOPHER POTEET, Appellant.

No. 1 CA-CR 20-0218
FILED 1-26-2021

Appeal from the Superior Court in Navajo County
No. S0900CR201700792
S0900CR201800133
S0900CR201800644
The Honorable Dale P. Nielson, Judge

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

The Rigg Law Firm, P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.

W I N T H R O P, Judge:

¶1 Christopher Poteet was found guilty of violating his
probation in case numbers S0900CR201700792, S0900CR201800133, and
S0900CR201800644. This appeal is filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530 (App. 1999).
Counsel for Poteet advised this court that he has searched the record and
has found no arguable issue to raise on appeal. He requests this court
conduct its own independent review of the record for fundamental error.
See Clark, 196 Ariz. at 537, ¶ 30.

¶2 We have appellate jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A). Finding no reversible
error, we affirm Poteet’s convictions. We correct a clerical error in the
court’s minute entry detailing Poteet’s sentence.

FACTS1 AND PROCEDURAL HISTORY

¶3 In 2019, Poteet pled guilty to possession of a dangerous drug
(methamphetamine), possession of a narcotic drug, resisting arrest, and
possession of drug paraphernalia. On September 11, 2019, he was
sentenced to four years of probation.

¶4 Following his sentencing hearing, Poteet went to the Navajo
County Probation Department and received probation reporting
instructions. Previously, Poteet had filled out a pre-sentence
questionnaire indicating he was living at his mother’s house in Show Low
and provided a Show Low address. Based on that questionnaire, Poteet

1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Fontes, 195
Ariz. 229, 230, ¶ 2 (App. 1998).

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was informed he needed to report to the Show Low probation office the
following morning and was provided with a written copy of the terms
and conditions of his probation.

¶5 Poteet did not report for probation at his assigned time.
When Poteet’s case file arrived at the Show Low office on September 23,
Poteet’s probation officer called the phone number in the file and spoke
with Poteet’s mother. She informed the officer that Poteet was no longer
living with her and gave the officer Poteet’s new phone number and
address in Holbrook. The officer then contacted the Holbrook office so
that Poteet could be reassigned to that office.

¶6 On September 30, a probation officer from the Holbrook
office called Poteet and left a message. On October 7, Poteet reported to
the Holbrook office, where an officer reviewed Poteet’s terms of
probation, gave him reporting instructions, detailed the community
restitution he needed to perform, and referred him to a substance abuse
treatment center. Poteet also completed a drug test on that day, which
later came back positive for methamphetamine.

¶7 In the following weeks, there were multiple instances where
the probation officer visited Poteet’s home but was unable to contact him.
When Poteet reported at the beginning of November, he still had not
enrolled in substance abuse treatment nor done any community
restitution. Poteet claimed he could not attend the substance abuse center
nor complete any restitution because of a wound on his leg; the officer
looked at the injury and advised Poteet to see a doctor. Poteet was drug
tested at this time and tested positive for methamphetamine and alcohol.

¶8 By the end of November, Poteet still had not completed any
intake for substance abuse treatment, completed any community
restitution, nor provided any doctor’s note about his injury that would
excuse him from treatment or restitution. Around the same time, the
probation officer also learned Poteet had accrued new criminal charges,
including disorderly conduct and disobedience to a police officer, in
addition to the new felony drug charges he received as a result of his
positive drug tests. Consequently, the probation officer filed a petition to
revoke Poteet’s probation.

¶9 The court held a hearing on the petition to revoke and heard
testimony from multiple probation officers who worked on Poteet’s case.
Following presentation of the evidence, the court found Poteet had
violated his probation by engaging in criminal activity, using illegal

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substances, consuming alcohol, failing to report for probation in
September, moving from Show Low to Holbrook without prior approval,
failing to enroll in substance abuse treatment, failing to complete any
community service, and failing to participate in any job search—all
written conditions of his probation. The court sentenced Poteet to a total
of six years in prison. Poteet timely appealed.

ANALYSIS

¶10 First, we address a clerical error in the court’s minute entry
sentencing Poteet. Poteet was sentenced to 2.5 years in prison for
possession of a dangerous drug (case S0900CR201700792), 2.5 years for
possession of a narcotic drug and 1 year for resisting arrest (case
S0900CR201800133), and 1 year for possession of drug paraphernalia (case
S0900CR201800644). The court stated at the sentencing hearing that
sentences for the two counts in case -133 would run concurrently, but all
other sentences would run consecutively. However, the court’s minute
entry states that the sentence for resisting arrest in case -133 will run
concurrently with the sentences in cases -792 and -644. When there is a
discrepancy between the oral pronouncement and the written sentence,
the “[o]ral pronouncement in open court controls over the minute entry.”
State v. Whitney, 159 Ariz. 476, 487 (1989). Moreover, when the
discrepancy “can be clearly resolved by looking at the record,” we may
“order the minute entry corrected if the record clearly identifies the
intended sentence.” State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013).
Accordingly, we correct the minute entry dated March 11, 2020, to delete
the statements that the sentence for resisting arrest in case -133 shall run
concurrent with the sentences in cases -792 and -644, and affirm the oral
pronouncement requiring the sentences in each cause number to run
consecutively.

¶11 Additionally, we have reviewed the entire record for
reversible error and find none. See State v. Leon, 104 Ariz. 297, 300 (1969);
Clark, 196 Ariz. at 537, ¶ 30. The record reflects that the proceedings were
conducted in compliance with Poteet’s constitutional and statutory rights
and conformed to the Arizona Rules of Criminal Procedure. Poteet was
represented by counsel at all stages of the proceedings and was present at
all critical stages. The evidence presented of Poteet’s multiple probation
violations was substantial and supports the verdicts.

¶12 Upon the filing of this decision, Poteet’s counsel shall inform
Poteet of the status of his appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue that may

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be appropriately submitted to the Arizona Supreme Court for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Poteet has thirty days from
the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

CONCLUSION

¶13 For the foregoing reasons, we affirm Poteet’s convictions
and correct the error in the court’s March 11, 2020 minute entry.

AMY M. WOOD • Clerk of the Court
FILED: AA

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